The Tar Pit

Wednesday, November 02, 2005

Alito on abortion and asylum

Strict constructionists take notice: Judge Alito isn't easy to pigeonhole in abortion cases.

From today's New York Times:

The Board of Immigration Appeals ruled in 1997 that husbands were eligible for asylum based on their wives' forced abortions. Last year, Judge Alito, writing for a unanimous three-judge panel, declined to extend that decision to boyfriends and fiancés.

The petitioner in the case, Cai Luan Chen, argued that he would have married his fiancée but for, as Judge Alito's decision put it, "China's inflated minimum marriage age requirement, which was instituted as part of the country's oppressive population control program." (The minimum age for men to marry in China is 22.)

Judge Alito expressed some sympathy for the argument but concluded that marriage was a categorical status that was easily applied to particular cases and was central to many distinctions made in the law.

The United States Court of Appeals for the Ninth Circuit in San Francisco reached a contrary conclusion in an asylum case last year, saying "husbands whose marriages would be legally recognized but for China's coercive family planning policies" could be entitled to asylum.

When two federal appeals courts issue flatly differing decisions on a decisive legal question, the Supreme Court often agrees to hear a case presenting the question to resolve the difference.

Judge Alito has rejected asylum applications involving abortion in other cases as well.

While abortion is a tragedy and China's population policy is one of the more barbaric examples of totalitarianism imaginable, neither issue was in Alito's purview in considering Cai's petition for asylum, so he ruled accordingly.

Hat tip: ImmigrationProf Blog